The U.S. Court of Appeals for the Federal Circuit affirmed the Merit Systems Protection Board's dismissal of an appeal by Nicholas Palmeri, a Senior Executive Service employee at the Drug Enforcement Administration who challenged his alleged involuntary retirement.

In the decision issued Jan. 13, the Federal Circuit panel consisting of Circuit Judges Dyk, Reyna, and Chen upheld the Board's determination that it lacked jurisdiction over Palmeri's case. The court held that as an SES employee at the DEA, Palmeri was required to appeal his alleged involuntary retirement through a system established by Attorney General regulations, not through the Merit Systems Protection Board.

Circuit Judge Dyk, writing for the court in *Palmeri v. Merit Systems Protection Board* (Fed. Cir. 2026), concluded that "the Board correctly construed the relevant statute and that the Board lacked jurisdiction."

The case presents a complex jurisdictional issue affecting federal employees in the Senior Executive Service, particularly those working at agencies under the Department of Justice. Palmeri had petitioned for review of the Board's decision dismissing his appeal for lack of jurisdiction in case No. DC-0752-22-0341-I-1.

The Federal Circuit's opinion addresses the statutory framework governing appeals by SES employees. Under the relevant statutes, SES employees at certain agencies, including the DEA, must follow specific appeal procedures established by the Attorney General rather than the general Merit Systems Protection Board process available to other federal employees.

However, the court noted a significant gap in the current system: "The Attorney General has not promulgated any such regulations, so this avenue does not exist." This means that while the statute requires SES employees to use the Attorney General's appeal system, no such system has actually been established through regulation.

Despite this regulatory void, the Federal Circuit affirmed the Board's lack of jurisdiction. The court acknowledged that Palmeri "may have a constitutional right to a posttermination hearing" but determined that "any rights, if they exist, must be asserted in a different forum, not before the Board."

The decision references the fundamental due process principle established in *Cleveland Board of Education v. Loudermill*, which holds that public employees with a property interest in their continued employment are generally entitled to a posttermination hearing to contest the termination of their employment.

Joel J. Kirkpatrick of Joel J Kirkpatrick PC in Canton, Michigan, argued for Palmeri. Katherine Michelle Smith from the Office of the General Counsel at the Merit Systems Protection Board in Washington, D.C., argued for the respondent, with additional representation by Allison Jane Boyle.

The case highlights a jurisdictional gap that affects Senior Executive Service employees at Department of Justice agencies. While the statute contemplates an appeal process through Attorney General regulations, the absence of such regulations leaves SES employees without a clear administrative remedy through the Merit Systems Protection Board.

This decision has implications for other SES employees who may face similar employment actions. The Federal Circuit's ruling clarifies that the Merit Systems Protection Board lacks jurisdiction over these cases, regardless of whether alternative appeal mechanisms actually exist.

The court's acknowledgment that constitutional due process rights may still apply suggests that affected employees might need to pursue relief through other legal channels, potentially including federal district court litigation.

For federal employment practitioners, the decision underscores the importance of understanding the different statutory frameworks that apply to various categories of federal employees. SES employees, particularly those at DOJ agencies, face different procedural requirements than other federal workers when challenging employment actions.

The ruling also places pressure on the Department of Justice to consider whether it should promulgate the regulations contemplated by the statute to provide SES employees with an administrative appeal process.

The Federal Circuit's decision in *Palmeri* represents an important clarification of jurisdictional boundaries in federal employment law. While affirming the Board's dismissal, the court's recognition of potential constitutional claims suggests that the legal issues surrounding SES employee rights may not be fully resolved.

This case serves as a reminder of the complex web of statutes and regulations governing federal employment, where jurisdictional questions can significantly impact employee rights and available remedies. The decision may prompt legislative or regulatory action to address the gap identified by the court.